Hamor v Commonwealth of Australia - [2020] FCA 1748

FEDERAL COURT OF AUSTRALIA
Hamor v Commonwealth of Australia [2020] FCA 1748

File number: NSD 575 of 2019

Judge: GLEESON J

Date of judgment: 4 December 2020

Catchwords: ADMINISTRATIVE LAW – application for judicial review – where applicant found to have engaged in inappropriate practice under s 82(1)(c) of the Health Insurance Act 1973 (Cth) by the Professional Services Review Committee – where applicant asserts reasonable apprehension of bias on behalf of Committee – where applicant asserts Committee misconstrued the relevant legislation – application dismissed

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6
Health Insurance Act 1973 (Cth) ss 3, 4, 10, 79A, 80, 81, 82, 83, 85, 92, 93, 95, 96, 101, 103, 106, 106H, 106K, 106KD, 106L, 106ZE, Pt VAA
Health Insurance (General Medical Services Table) Regulation 2014 (Cth) reg 5, Sch 1
Judiciary Act 1903 (Cth) s 39B(1A)

Cases cited: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577
CUR24 v Director of Public Prosecutions (NSW) [2012] NSWCA 65; 83 NSWLR 385
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
IW v City of Perth [1997] HCA 30; 191 CLR 1
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427
R v Minister for Immigration and Multicultural Affairs: Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128
Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, 75 ALJR 982
Reece v Webber [2011] FCAFC 33; 192 FCR 254
Webb v The Queen [1994] HCA 30; 181 CLR 41

Date of hearing: 24 June and 24 July 2020

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 186

Counsel for the Applicant: J Lucy

Solicitor for the Applicant: Unsworth Legal Pty Ltd

Counsel for the First and Second Respondent: P Knowles

Solicitor for the First and Second Respondent: Maddocks

ORDERS

NSD 575 of 2019

BETWEEN:
GEORGE HAMOR

Applicant

AND:
COMMONWEALTH OF AUSTRALIA

First Respondent

PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 1015

Second Respondent

JUDGE:

GLEESON J

DATE OF ORDER:

4 DECEMBER 2020

THE COURT ORDERS THAT:
1.The amended originating application for judicial review filed 7 November 2019 be dismissed.
2.The applicant pay the first respondent’s costs of the proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
GLEESON J:

By an amended originating application for judicial review filed on 7 November 2019, the applicant (Dr Hamor), a respiratory and sleep physician, seeks judicial review pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B(1A) of the Judiciary Act 1903 (Cth) of preliminary findings and findings of the second respondent (

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCA 1748
Decision Date: 4 December 2020

CaseChat Overview and Summary

The matter of Hamor v Commonwealth of Australia involved an application for judicial review brought by Dr Hamor against the Commonwealth of Australia. Dr Hamor had been found by the Professional Services Review Committee to have engaged in inappropriate practice under section 82(1)(c) of the Health Insurance Act 1973 (Cth) due to his conduct as a consultant physician. Dr Hamor contested the finding on the grounds of apprehended bias on the part of the Committee and alleged that the Committee had misconstrued the relevant legislation. The primary legal issues before the court were whether the Committee had demonstrated a reasonable apprehension of bias in its consideration of the case and whether the Committee had correctly interpreted the statutory provisions in determining the inappropriateness of Dr Hamor's conduct.

The court found that the facts presented did not substantiate a reasonable apprehension of bias on the part of the Committee. The court highlighted that any errors made by the Committee did not reflect an adverse prejudgment but rather were part of their consideration of the specific circumstances of the case, including the adequacy of supervision and the presence of a conflict of interest. The court also dismissed Dr Hamor's contention that the Committee misconstrued its statutory task, finding that the Committee had appropriately interpreted the relevant sections of the Act in reaching its conclusions.

Ultimately, the court concluded that the application for judicial review should be dismissed, finding no merit in the claims of bias or misconstruction of the statutory task. The court ordered that the amended originating application filed on 7 November 2019 be dismissed and that Dr Hamor pay the costs of the proceeding to the first respondent.

Orders

Orders of the court

1. The amended originating application for judicial review filed 7 November 2019 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, the application will be dismissed.BACKGROUND At all relevant times, by s 82(1)(c) of the Health Insurance Act 1973 (Cth) (Act), a practitioner engaged in inappropriate practice if the practitioner’s conduct in connection with rendering or initiating relevant services as a consultant physician in a particular specialty was such that a committee could reasonably conclude that the conduct would be unacceptable to the general body of consultant physicians in that specialty. By s 81, service relevantly means a service that has been rendered if, at the time it was rendered, medicare benefit was payable in respect of the service. By s 3, medicare benefit means a medicare benefit under Part II of the Act. By s 10(1) of the Act, where medical expenses were incurred in respect of a professional service rendered in Australia to an eligible person, medicare benefit calculated in accordance with s 10(2) was payable, subject to and in accordance with the Act, in respect of that professional service. The benefit in respect of a service was calculated as a percentage of the Schedule Fee. The Schedule Fee, in relation to a service, means the fee specified in the table in respect of the service. The table means, relevantly, the general medical services table prescribed by s 4 of the Act. As already noted, at the relevant time, this table was set out in Sch 1 to the Regulation. Regulation 5 of the Regulation stated that, for s 4(1) of the Act, the Regulation prescribed a table of medical services set out in Sch 1. During the review period, item 12250 provided:Overnight investigation for sleep apnoea for a period of at least 8 hours in duration for a patient aged 18 years or more, if all of the following requirements are met:(a)the patient has, before the overnight investigation, been referred to a qualified sleep medicine practitioner by a medical practitioner whose clinical opinion is that there is a high probability that the patient has obstructive sleep apnoea; and(b)the investigation takes place after the qualified sleep medicine practitioner has:(i) confirmed the necessity for the investigation; and(ii)communicated this confirmation to the referring medical practitioner; and(c)during a period of sleep, the investigation involves recording a minimum of 7 physiological parameters which must include:(i) continuous electro-encephalogram (EEG); and(ii) continuous electro-cardiogram (ECG; and(iii) airflow; and(iv) thoraco-abdominal movement; and(v) oxygen saturation; and(vi) 2 or more of the following:(A) electro-oculogram (EOG);(B) chin electro-myogram (EMG);(C) body position; and(d)in the report on the investigation, the qualified sleep medicine practitioner uses the data specified in paragraph (c) to:(i) analyse sleep stage, arousals and respiratory events; and(ii) assess clinically significant alteration in heart rate; (e) the qualified sleep medicine practitioner:(i)before the investigation takes place, establishes quality assurance procedures for data acquisition; and(ii)personally analyses the data and writes the report on the results of the investigation. (f)the investigation is not provided to the patient on the same occasion as a service mentioned in any of the items 11000 to 11005, 11503, 11700 to 11709, 11713 and 12203 is provided to the patientPayable only once in a 12 month period

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Dr Hamor argued that this finding involved a change of position on the part of the Committee having regard to the Committee’s reference to the Medical Benefits Schedule Book, quoted at [10] above. I do not accept Dr Hamor’s contentions that the Committee “acknowledged the correctness” of the position stated in the Medical Benefits Schedule Book, or that the Committee quoted from the book with apparent approval. But in any event, there was no change of position. The book states a general rule: the Committee concluded that the general body of respiratory and sleep physicians would expect something different for item 12250.Conclusion The facts above fall far short of the facts alleged, and far short of demonstrating that a fair-minded lay person might reasonably apprehend, in the totality of the circumstances, that the Committee might have decided the review otherwise than on an impartial evaluation of the merits. In particular, while the findings of the final report (and the preliminary findings in the draft report) reveal error as to the precise relationship between HSS and Dr Hamor, that error does not provide a reasonable basis for a fair-minded lay person to apprehend bias on the Committee’s part. A fair-minded lay person would recognise that the errors were made in the context of the Committee’s consideration of:(1)whether Dr Hamor failed to supervise adequately the technicians provided by HSS who were involved in the provision of the home sleep studies; and(2)whether the arrangements between Dr Hamor and HSS created a conflict of duty and interest that was not adequately mitigated to the potential detriment of Dr Hamor’s patients. In that context, a fair-minded lay person would appreciate that the Committee endeavoured to address the significance of the relationship between HSS and Dr Hamor for the patients who received the relevant services, which was a relevant matter to consider and did not approach the question with any adverse prejudgment. The finding of agency did not indicate an unfavourable opinion concerning Dr Hamor and HSS, but simply a conclusion as to the nature of their relationship. The Committee specifically adverted to the possibility of minimising a conflict of interest. By doing so, they showed that they did not hold a fixed view that a conflict of interest was necessarily unacceptable. MISCONSTRUCTION OF STATUTORY TASK Dr Hamor contended that the Committee misconstrued its statutory task by considering that item 12250 required the qualified sleep medicine practitioner to:(1)supervise the investigation by the technicians and scorers, other than by establishing quality assurance procedures for data acquisition, and (2)take a history, or supervise the taking of a history. By doing so, Dr Hamor argued, the Committee misdirected itself in determining whether his conduct, in connection with rendering or initiating item 12250 services, was such that a committee could reasonably conclude that it would be unacceptable to the general body of consultant physicians in Dr Hamor’s speciality.Supervision requirement

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 575 of 2019
Judge:	GLEESON J
Date of judgment:	4 December 2020
Catchwords:	ADMINISTRATIVE LAW – application for judicial review – where applicant found to have engaged in inappropriate practice under s 82(1)(c) of the Health Insurance Act 1973 (Cth) by the Professional Services Review Committee – where applicant asserts reasonable apprehension of bias on behalf of Committee – where applicant asserts Committee misconstrued the relevant legislation – application dismissed
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6 Health Insurance Act 1973 (Cth) ss 3, 4, 10, 79A, 80, 81, 82, 83, 85, 92, 93, 95, 96, 101, 103, 106, 106H, 106K, 106KD, 106L, 106ZE, Pt VAA Health Insurance (General Medical Services Table) Regulation 2014 (Cth) reg 5, Sch 1 Judiciary Act 1903 (Cth) s 39B(1A)
Cases cited:	CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 CUR24 v Director of Public Prosecutions (NSW) [2012] NSWCA 65; 83 NSWLR 385 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 IW v City of Perth [1997] HCA 30; 191 CLR 1 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 R v Minister for Immigration and Multicultural Affairs: Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, 75 ALJR 982 Reece v Webber [2011] FCAFC 33; 192 FCR 254 Webb v The Queen [1994] HCA 30; 181 CLR 41
Date of hearing:	24 June and 24 July 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	186
Counsel for the Applicant:	J Lucy
Solicitor for the Applicant:	Unsworth Legal Pty Ltd
Counsel for the First and Second Respondent:	P Knowles
Solicitor for the First and Second Respondent:	Maddocks

JUDGE:	GLEESON J
DATE OF ORDER:	4 DECEMBER 2020